Sung v. Sui

2024 BCSC 1125 Sung v. Sui

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sung v. Sui, 2024 BCSC 1125 Date: 20240626 Docket: E013062 Registry: Vancouver Between: Won Xian Sung also known as Huan Xian Song Claimant And Kiam San Sui also known as Kian San Sui Respondent Before: Associate Judge Robertson Reasons for Judgment Counsel for the respondent: G. Vlug Appearing in person: (N. Mak, interpreter) W.X. Sung Place and Date of Hearing: Vancouver, B.C. March 1, 2024 Place and Date of Judgment: Vancouver, B.C. June 26, 2024 [1] The claimant filed an application on October 24, 2023 for an order to compel the respondent to pay all outstanding child support and s. 7 expenses from 2017 to October 2022. Background [2] By way of background, the parties were married in November 1992, and separated in 2001. They have one child (the "Child") who is now 27 years old. [3] The parties obtained their final order for divorce in 2004, which addressed the usual collateral relief, including payment of child support and s. 7 expenses. [4] By consent order pronounced April 5, 2017 (the "2017 Order"): a) Child support payments were increased to $431 per month, which was to be paid until the Child was no longer a "child of the marriage" as that term is defined in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); b) The respondent was to pay 75% of all special expenses; c) Arrears were to be paid as follows: $5,172 in full

satisfaction of all claims for arrears of child support, and $8,925.74 in full satisfaction of all claims for arrears of special expenses; and d) In the future, the parties were to exchange tax returns by June 30 of each year. [5] By order pronounced June 13, 2023, the reasons for which are indexed at 2023 BCSC 1458, the respondent's obligation to child support was terminated as of October 2022, and arrears of child support fixed at $0. [6] At that application, the claimant sought an order to pay certain special expenses; however, as there was no application before the court seeking such relief and given that the bulk of the receipts in evidence were in respect of expenses incurred prior to the 2017 Order, no such order was made. However, it was made clear that the claimant was not precluded from bringing such an application on proper evidence. Specifically, by order made October 23, 2023, the court clarified that fixing the arrears at $0.00 was without prejudice to the ability of the claimant to establish entitlement to payment for special expenses prior to October 2022. [7] This application was filed the next day, returnable on a without notice basis on November 6, 2023. In the application, the claimant alleges that the respondent is labile to pay 75% of expenses calculated in the amount of $43,123.59, which she claims is for the period April 5, 2017 to October 31, 2022. [8]

Not surprisingly, the application did not proceed on a without notice basis. Rather, the claimant was ordered to give proper notice to the respondent, and the application adjourned generally. [9] The matter was rescheduled to be heard on December 8, 2023 and came on for hearing before me. At that time, it was again adjourned to January 25, 2024 with the respondent advising the court that he had still not seen the application as filed. As such, I made directions as to the delivery of materials by regular mail (an issue was raised by the claimant that the respondent had obstructed delivery of the materials to him) and a timeline in which the application and all supporting affidavits were to be delivered. I also ordered that the claimant "file a further affidavit, and mail it to the respondent's address for delivery, which sets out a complete set of receipts for all s. 7 expenses she is seeking to be reimbursed with particulars and statements of account as to any tuition payments, refunds, and RESP Accounts, by January 5, 2024." [10] The matter was not heard on January 25, 2024, presumably due to lack of court time, and was adjourned to March 1, 2024. [11] Despite the clear direction given by me on December 8, 2023, the claimant had not filed an affidavit setting out the complete set of receipts including particulars to show the complete tuition accounts, which would also show

refunds, and use of RESP accounts, to enable any determination as to recoverability of s. 7 expenses in that regard. [12] This information was necessary given the academic history of the Child, which included withdrawals from various programs of study in which he had been enrolled. Specifically, the respondent deposed that, on more than one occasion, the claimant paid tuition, immediately cancelled registration, and obtained a refund, keeping funds that were erroneously paid by the respondent in those circumstances. [13] I was not satisfied that the evidence was sufficient for me to make any order. As to the non compliance with the order made on December 8, 2023, when I made inquiries of the claimant as to why there had not been compliance, she indicated that she did not understand the order made. [14] Accordingly, I again ordered the claimant to file an affidavit attaching a statement of account from BCIT as to all amounts paid for tuition and any refunds received for the period of July 19, 2016 to October 21, 2022, to be delivered to the respondent and to myself through trial scheduling by March 15, 2024, with the respondent to have until March 22, 2024 to provide written submission and an affidavit to be provided to the claimant and myself through trial scheduling. [15] No such information was forwarded to me through scheduling as was required in the direction that I clearly

repeated to the claimant. Sometime after the deadline had passed, as part of my own follow up on this matter I learned that an affidavit was filed on March 15, 2024. It was not, as I directed, forwarded to me by the claimant through trial scheduling. In addition, that affidavit notably did not include the requested information as to the accounting from BCIT, saying the information was not available. Instead, the affidavit largely addressed matters already dealt with. [16] There was, however, one item of note in the March 15, 2024 affidavit, that being a sworn statement in response to the respondent's allegation that payments had been made by him towards expenses. The claimant deposed that out of the respondent's payments from December 17, 2018 to November 9, 2020 totalling $7,679.90, those were intended to cover expenses pre-dating April 2017. To support that statement, a spreadsheet was attached showing pre-2017 expenses, in chronological order. It was unclear as to how it was established that the payments made post 2017 were on account of the arrears, other than the claimant choosing to apply them in that manner. [17] Subsequently, as I was intending to deal with the matter having determined the March 15, 2024 affidavit had been filed, and upon further review of the court file, I determined that the claimant had filed a further affidavit on May 10, 2024, which attached the

BCIT statement as had now been received. Again, it was not directed to my attention through scheduling as I had directed the parties to do. [18] It was also unclear if the respondent was provided with copies of these affidavits. Through scheduling, and upon inquiry, the respondent advised that he had not been provided with the new affidavits, although that was disputed by the claimant. [19] Through scheduling, the parties were advised that the respondent would have until June 17, 2024 to provide any response to the new affidavits, or to advise if no response would be forthcoming, following which I would deliver my reasons. [20] On June 4, 2024, the respondent provided response written submissions, taking the position that given that the directions provided by the court had not been followed by the claimant, and other conduct throughout these proceedings including the failure of the claimant to pay an outstanding costs award, that the further affidavits should not be admitted, and the application dismissed with costs in his favour. In the alternative, accounting was provided which, in the respondent's view, showed that no funds should be owing by him. [21] In my view, it is not in the overall interests of justice to proceed without the evidence submitted by the claimant. The failure to direct the initial further affidavit to my attention could, reasonably, arise from a lack of

understanding of the process to have materials forwarded to a presiders attentions. With respect to the further May 2024 affidavit, the deponent explains that the information was requested from BCIT, but that it took some time to receive it. The Claimed Expenses [22] The expenses being claimed are as follows, as amended by the claimant to reflect the refunds received from BCIT: Type Provider Date Amount Allowed 2017 51 Langara Tuition Summer 2017 $0.00 11 Driving Lessons and Exam

ICBC 21-Apr-17 $0.00 3 Physio and Massage Hung Yuan Huang 21-Jun-17 $0.00 4 Physio and Massage Hung Yuan Huang 26-Jul-17 $0.00 5 Physio and Massage Hung Yuan Huang 09-Aug-17 $0.00 6 Physio and Massage Hung Yuan Huang 16-Aug-17 $0.00 7 Physio and Massage Hung Yuan Huang 23-Aug-17 $0.00 38 BCIT Tuition Fall 2017 $3,455.68 33 Computer, Monitor, Printer Computer 09-Sep-17 $0.00 52 Contact and Eye Exam Dr. Raymond 17-Sep-17 $0.00 30 Book Purchases 25-Sep-17 $0.00 2017 Sub Total $3,455.68 2018 53 Contact and Eye Exam Dr. Raymond 07-Mar-18 $0.00 39 BCIT Tuition Spring/Summer 2018 01-May-18 $0.00 12 Driving Lessons and Exam

ICBC 02-May-18 $0.00 40 BCIT Tuition Fall 2018 $3,409.03 34 Computer, Monitor, Printer Computer 03-Nov-18 $0.00 41 BCIT Tuition Winter 2018 $3,365.68 2018 Sub Total: $6,774.71 2019 13 Driving Lessons and Exam

ICBC 02-Jan-19 $0.00 1 Dental Care Pako Dental 14-Mar-19 $0.00 14 Driving Lessons and Exam Driving Lessons 21-Mar-19 $0.00 15 Driving Lessons and Exam

ICBC 21-Mar-19 $0.00 42 BCIT Tuition Spring/Summer 2019 01-May-19 $6.00 16 Driving Lessons and Exam Driving Lessons 18-Jun-19 $0.00 17 Driving Lessons and Exam

ICBC 18-Jun-19 $0.00 43 BCIT Tuition Fall 2019 $4,019.42 31 Book Purchases 19-Sep-19 $0.00 44 BCIT Tuition Winter 2019 $3,450.03 2019 Subtotal: $7,475.45 2020 54 Contact and Eye Exam Keefer Place Eyecare 09-Jun-20 $0.00 55 Contact and Eye Exam Keefer Place Eyecare 17-Jun-20 $0.00 2 Dental Care Pako Dental 25-Jul-20 $199.12 45 BCIT Tuition Fall 2020 $4,009.47 25 Study Materials HAK5 06-Sep-20 $0.00 26 Study Materials USB 09-Sep-20 $0.00 35 Computer, Monitor, Printer Computer 10-Sep-20 $0.00 32 Book Purchases 16-Sep-20 $0.00 27 Study Materials USB 27-Sep-20 $0.00 28 Study Materials Keyboard 14-Oct-20 $0.00 46 BCIT Tuition Winter 2020 $3,719.42 36 Computer, Monitor, Printer Computer 28-Dec-20 $0.00 2020 Subtotal: $7,928.01 2021 29 Study Materials USB adapter 15-Apr-21 $0.00 47 BCIT Tuition Spring/Summer 2021 01-May-21 $1,519.78 18 Medical Prescriptions Healthside Pharmacy 25-May-21 $24.41 19 Medical Prescriptions Healthside Pharmacy 25-May-21 $24.10 20 Medical Prescriptions Tai Sin Acupuncture 08-Jun-21 $0.00 21 Medical Prescriptions Wui King 12-Aug-21 $0.00 56 Contact and Eye Exam FYIdoctors 26-Aug-21 $395.00 57 Contact and Eye Exam FYIdoctors 26-Aug-21 $0.00 48 BCIT Tuition Winter 2021 01-Dec-21 $4,009.47 [23] The claimant seeks payment of 75% of those amounts, calculated at $31,969.19. Respondent's Position [24] The respondent opposes the application, on three main

arguments: a) he has more than adequately paid for appropriate expenses since 2017; b) the delay in seeking the s. 7 expense's recovery has caused him financial prejudice both as to the unmanageable amount now being claimed, and as to his ability to dispute their reasonableness having regard to the circumstances at the time they were incurred; and c) in the alternative, any amount paid should be based on the proper pro rata share having regard to the parties' changes in income since 2017. [25] In addition, he notes that some of the claimed expenses are not properly recoverable as s. 7 expenses, namely the amounts for driving exams and tests (see Edwards v. Edwards, 2001 BCSC 1014, at para. 15), prescriptions that are notably in the claimant's name, not the Child's, and computers (see Clarke v. Clarke, 2014 BCSC 824 at para. 54; and D.L.Y. v. J.A.P.Y, 2003 BCSC 1372 at para. 18), any illegible receipts, and that the $1,000 that remains outstanding from a costs award owed to him by the claimant should be discounted. [26] As to the first argument, the respondent deposes that he paid as follows towards the s. 7 expenses since 2017: Nov 9, 2020 $2,000 Aug 9, 2020 $2,000 Aug 24, 2020 $2,000 April 22, 2020 $2,800 March18, 2022 $2,000 Aug 27, 2018 $2,000 June 24, 2018 $1,884.14 Dec 17, 2018 $3,049.26 Total $17,733.40 [27] As noted, the claimant argues that $7,679.90 was in respect of

the arrears owing from the 2017 Order. That is disputed by the respondent. I accept the respondent's evidence that the amounts paid by him as deposed were for ongoing expenses after the 2017 Order. Of course, by virtue of that evidence, if the claimant incorrectly applied one of the above itemized payments to the arrears, then she will be entitled to seek to recover that amount as an outstanding payment due under the 2017 Order. [28] As to the parties' respective incomes, the respondent argues that the proportionate shares have changed as follows: Year Claimant's Income Respondent's Income Respondent's Proportionate Share 2017 $26,900 $59,452 69% 2018 $27,910 $56,175 67% 2019 $26,814 $46,220 63% 2020 $51,209 $53,093 51% 2021 $41,498 $37,191 47% [29] As no income information was provided by either party for 2022, the respondent argues that the 47% from 2021 ought to carry over. Analysis [30] A relatively consistent feature throughout these proceedings has been what is, from the respondent's perspective, a delay in the claimant providing him with any indication of expenses being incurred so that he could pay his proportionate share in a timely way, so that he does not suffer prejudice. He says he has paid amounts from time to time based on what he understands to be the expenses that the Child has incurred, and that without a complete and proper accounting being provided he did

the best that he could in that respect. [31] However, to now face a claim of over $30,000 is, he argues, significantly prejudicial to him. [32] In S.L.C. v. R.M.C. 2007 BCSC 515, the court noted as follows as to the effect of delay in seeking support, the analysis of which is equally applicable to s. 7 expenses. [74] Unreasonable delay in seeking increased support is undesirable for two reasons. First, the payor's interest in certainty may be frustrated. So, for example, a payor who has made timely disclosure of income increases but who has not been asked to increase his support payment may have a legitimate complaint if the payee parent suddenly arises from slumber to demand retroactive payments. Second, support is for the children's benefit. Lassitude in seeking increased support may have a negative effect on the children. Some incentive, like an easier road to increased support, should be on offer so as to encourage the payee to seek support earlier. [75] However, the court should not hesitate to find that a payee had a reasonable excuse for delay if, among other possibilities, he or she did not have the financial means to pursue an application for increased support. [33] In J.M. v. D.M. 2013 BCSC 502, the effect and consideration as to delay was described as follows: [163] A delay becomes unreasonable when the recipient spouse knew the paying spouse ought to be paying more,

but decided not to demand an increase or to apply, if necessary. Justifiable fears of retaliation, for example, harboured by the recipient, or a lack of the financial or emotional means to apply, or inadequate legal advice may excuse a failure to apply earlier. [164] I find the claimant harboured no justifiable fears. The claimant, who always had the benefit of experienced counsel, first sought an increase in March 2012, when the events occurred that resulted in the claimant's July 20, 2012 application. [165] When a judge is deciding whether to make a retroactive award, they consider both the past and present circumstances of the child. The overriding concern is whether the payor parent's failure to pay support in the past adversely affected their life. Another related concern is whether a retroactive award made to cover support that the payor should have been paying at the time will benefit the child when an award is made. [166] A child who currently enjoys a high standard of living may benefit less from a retroactive award than a child currently in need. Conversely, a child who experienced need in the past might be compensated for it through a retroactive award. [167] The respondent submits a retroactive award would benefit only the claimant and would also be to the children's detriment, as it would inhibit his ability to support the children's needs prospectively. He further

submits that to compensate the claimant now for an earlier period, during which she took no steps to obtain more, would impose on him a significant and unnecessary financial burden at a time when meeting the children's current and prospective needs already maximally stretches his financial resources. [169] The court can consider the effects of a retroactive order on the payor spouse and financial hardship a retroactive order might cause them. [34] In D.B.S. v. S.R.G., 2006 SCC 37, at para. 123, the court indicated that a general rule is that it will "usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent." [35] Here the respondent makes many of these arguments, namely that he should not be obligated to pay for expenses incurred going back to 2017 as receipts were not provided and no claim made in a reasonably timely way, or with any particulars so as to be ale to consider the request. Nonetheless, he paid what he believed to be reasonable amounts from time to time towards expenses generally. The claimant argues that she has provided receipts, but that the respondent frustrates her attempts at delivering any such materials. [36] Such an order is prejudicial, the respondent argues, as he is now 73 years old, wanting to retire, with diminishing income as he transitions into such retirement,

and given that he has another child who is also dependent upon him. [37] Further, the respondent argues that assessing the s. 7 expense back to 2017 in the magnitude being sought by the claimant will not benefit the child as he is no longer attending school and, given the findings of the court in June 2023, that as of October 2022 he was no longer a child of the marriage and therfore he is no longer in need of such support. [38] In my view, delay is a significant factor in this case. It is not clear when this application was served on the respondent, as it was initially filed on a without notice basis, and not reset on notice until December, 2023. Using a general three year rule, and assuming that notice was given some time before the hearing date, I agree that the expenses pre-dating October 2020 should not be recovered, with the exception of the tuition costs as it was known and expected throughout that time period that such costs were being incurred. [39] With respect to the expenses incurred for the years since October 2020, I agree that certain items are not properly s. 7 expenses, including the eye care items that are for accessories and eye drops, Chinese herbs, books which are not accompanied by proof that they were required for a specific class, computers and computer accessories, such as, but not limited to USB ports, HAK 5, a keypad for an ipad, or Canakit items, are

not recoverable expenses. Items that are not supported by a legible and clear receipt are not recoverable. Items for prescriptions, dental care, physio and contact lenses are recoverable, except those in the claimant's name. [40] I agree that the proper pro rata contributions shall be based in the parties' respective line 1500 incomes, and that given that the 2022 incomes have not been exchanged, that the same pro rata as 2021 can be used. Conclusion and Order [41] Attached as Schedule "A" to these reasons is a final listing of the items claimed, and amounts allowed based upon the above analysis. [42] The respondent's obligation to pay s. 7 expenses for the period from the 2017 Order, to the date on which the Child was determined to no longer be a child of the marriage, after deducting the amounts previously paid, and applying a $1,000 set off for the costs ordered to be paid by the claimant to the respondent is $1,325.62, calculated as follows: Amount Pro Rata Respondent's Portion 2017 Sub Total $3,455.68 0.69 $2,384.42 2018 Sub Total $6,774.71 0.67 $4,539.06 2019 Sub Total $7,475.45 0.63 $4,709.53 2020 Sub Total $7,928.01 0.51 $4,043.29 2021 Sub Total $5,972.76 0.47 $2,807.20 2022 Sub Total $3,352.18 0.47 $1,575.52 Total $20,059.02 Less Sums Paid -$17,733.40 Less Cost Award to be Set off -$1,000.00 Amount owing $1,325.62 [43] As such, I order the respondent to pay to the

claimant the sum of $1,325.62 in respect of his proportionate share of s. 7 expenses for the period April 5, 2017 to October 2022, when the Child ceased to be a child of the marriage. [44] As to costs, while the net result is an amount payable to the claimant, such that the claimant has been successful, the fact that three attendances were needed when one ought to have been, solely as a result of the failure of the claimant to follow the court's directions ought to attract a cost consequence. The respondent argued that he ought to be entitled to all of his costs on solicitor and own client basis. While I agree that the claimant's dilatory and obstructive approach to dealing with these matters is concerning, I do not agree that the conduct is of the type to attract special costs. [45] As this appears to be the final matter for determination between these parties, and to avoid further costs being incurred, I summarily assess the respondent's costs at $1,680, that being the amount recoverable under tariff item 4 for a half day attendance on December 8, 2023, and a full day attendance on January 25, 2024, those being the days that ought to have been avoided had the claimant properly pursued this matter, plus taxes. There will be no costs to either party for the March 1, 2024 attendance. [46] In summary, my orders are: a) The respondent shall pay to the claimant the sum of $1,325.62

in respect of his proportionate share of s. 7 expenses for the period April 5, 2017 to October 2022, when the Child ceased to be a child of the marriage (the "S. 7 Obligation"). b) The claimant shall pay the respondent's costs of this application assessed at $1,680 (the "Costs Award"). c) The S. 7 Obligation shall be set off from the Costs Award, such that the net payable under this order is the amount of $354.38, to be paid by the claimant to the respondent, within 60 days of this Order. For clarity, this set off amount includes the $1,000 owing on the cost order made on June 13, 2023. "Associate Judge Robertson" Schedule "A" Type Provider Date Amount Allowed 2017 51 Langara Tuition Summer 2017 $0.00 11 Driving Lessons and Exam

ICBC 21-Apr-17 $0.00 3 Physio and Massage Hung Yuan Huang 21-Jun-17 $0.00 4 Physio and Massage Hung Yuan Huang 26-Jul-17 $0.00 5 Physio and Massage Hung Yuan Huang 09-Aug-17 $0.00 6 Physio and Massage Hung Yuan Huang 16-Aug-17 $0.00 7 Physio and Massage Hung Yuan Huang 23-Aug-17 $0.00 38 BCIT Tuition Fall 2017 $3,455.68 33 Computer, Monitor, Printer Computer 09-Sep-17 $0.00 52 Contact and Eye Exam Dr. Raymond 17-Sep-17 $0.00 30 Book Purchases 25-Sep-17 $0.00 2017 Sub Total $3,455.68 2018 53 Contact and Eye Exam Dr. Raymond 07-Mar-18 $0.00 39 BCIT Tuition Spring/Summer 2018 01-May-18 $0.00 12 Driving Lessons and Exam

ICBC 02-May-18 $0.00 40 BCIT Tuition Fall 2018 $3,409.03 34 Computer, Monitor, Printer Computer 03-Nov-18 $0.00 41 BCIT Tuition Winter 2018 $3,365.68 2018 Sub Total: $6,774.71 2019 13 Driving Lessons and Exam

ICBC 02-Jan-19 $0.00 1 Dental Care Pako Dental 14-Mar-19 $0.00 14 Driving Lessons and Exam Driving Lessons 21-Mar-19 $0.00 15 Driving Lessons and Exam

ICBC 21-Mar-19 $0.00 42 BCIT Tuition Spring/Summer 2019 01-May-19 $6.00 16 Driving Lessons and Exam Driving Lessons 18-Jun-19 $0.00 17 Driving Lessons and Exam

ICBC 18-Jun-19 $0.00 43 BCIT Tuition Fall 2019 $4,019.42 31 Book Purchases 19-Sep-19 $0.00 44 BCIT Tuition Winter 2019 $3,450.03 2019 Subtotal: $7,475.45 2020 54 Contact and Eye Exam Keefer Place Eyecare 09-Jun-20 $0.00 55 Contact and Eye Exam Keefer Place Eyecare 17-Jun-20 $0.00 2 Dental Care Pako Dental 25-Jul-20 $199.12 45 BCIT Tuition Fall 2020 $4,009.47 25 Study Materials HAK5 06-Sep-20 $0.00 26 Study Materials USB 09-Sep-20 $0.00 35 Computer, Monitor, Printer Computer 10-Sep-20 $0.00 32 Book Purchases 16-Sep-20 $0.00 27 Study Materials USB 27-Sep-20 $0.00 28 Study Materials Keyboard 14-Oct-20 $0.00 46 BCIT Tuition Winter 2020 $3,719.42 36 Computer, Monitor, Printer Computer 28-Dec-20 $0.00 2020 Subtotal: $7,928.01 2021 29 Study Materials USB adapter 15-Apr-21 $0.00 47 BCIT Tuition Spring/Summer 2021 01-May-21 $1,519.78 18 Medical Prescriptions Healthside Pharmacy 25-May-21 $24.41 19 Medical Prescriptions Healthside Pharmacy 25-May-21 $24.10 20 Medical Prescriptions Tai Sin Acupuncture 08-Jun-21 $0.00 21 Medical Prescriptions Wui King 12-Aug-21 $0.00 56 Contact and Eye Exam FYIdoctors 26-Aug-21 $395.00 57 Contact and Eye Exam FYIdoctors 26-Aug-21 $0.00 48 BCIT Tuition Winter 2021 01-Dec-21 $4,009.47 2021 Subtotal $5,972.76 2022 22 Medical Prescriptions 10-Mar-22 $0.00 23 Medical Prescriptions 10-Mar-22 $0.00 49 BCIT Tuition Spring/Summer 2022 $1,550.07 24 Medical

Prescriptions Wui King 08-May-22 $0.00 37 Computer, Monitor, Printer Printer 13-Aug-22 $0.00 58 Contact and Eye Exam FYIdoctors 08-Sep-22 $95.00 59 Contact and Eye Exam FYIdoctors 08-Sep-22 $46.00 8 Physio and Massage The Motion Lab 20-Sep-22 $37.00 9 Physio and Massage The Motion Lab 04-Oct-22 $37.00 10 Physio and Massage The Motion Lab 18-Oct-22 $37.00 50 BCIT Tuition Winter 2022 $1,550.11 2022 Subtotal: $3,352.18